SUSAN M. BUTTITTA, Individually et al. v. ASBESTOS CORPORATION LTD.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-6101-04T16101-04T1
SUSAN M. BUTTITTA, Individually
and as Executrix to the Estate
of MARK BUTTITTA,
ASBESTOS CORPORATION LTD.,
ALLIED-SIGNAL, INC, ALLIED
CORPORATION, ALMA PRODUCTS
CO., ASBESTOS FIBRE CORP.,
BORG-WARNER CORP., BORG & BECK,
C.L. ZIMMERMAN CO., GENERAL
MOTORS CORP., HONEYWELL
INTERNATIONAL, INC., A Successor
in Interest to ALLIED SIGNAL,
INC, and as A Successor in
Interest to HONEYWELL INTERNATIONAL,
INC., and BENDIX, LAKE ASBESTOS
OF QUEBEC, LTD., NATIONAL
GYPSUM CO., RAYMARK INDUSTRIAL
DIVISION, UNION CARBIDE CORP.,
and UNION INSULATING CO.,
Argued telephonically: March 7, 2006 - Decided:
Before Judges Fall, Parker and C.S. Fisher.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Number BER-L-9592-02.
Deborah M. Knight, admitted pro hac vice, argued the cause for appellant (Goldfein & Joseph, attorneys; Pearl Pham, of counsel; Julie B. Master, on the brief).
Richard D. Catenacci argued the cause for respondent (Connell Foley, attorneys; Mr. Catenacci, of counsel; Ryan A. McGonigle, on the brief).
Plaintiff Susan M. Buttitta, individually and as executrix of the estate of her husband Mark Buttitta, commenced this wrongful death action against Asbestos Corporation, Ltd. (ACL) and numerous other defendants, alleging that her husband's illness and death were the result of his exposure to asbestos while he was employed at a General Motors Corporation (GM) facility in Englewood between 1970 and 1973; his exposure to asbestos dust from his father, who was employed by GM at its Bloomfield and Englewood facilities from 1952 through the 1970s; and his exposure to asbestos dust from his brother, who was employed by GM in Englewood between 1970 and 1971. Mark Buttitta contracted mesothelioma and died on December 21, 2002, at the age of forty-nine.
ACL, which has also been known as "Societe Asbestos Limitee," was incorporated under Canadian law in 1925, and was engaged in the mining and milling of raw chrysotile asbestos fiber, a natural mineral substance, but not a product, from 1925 to 1986. ACL sold its raw chrysotile asbestos fiber F.O.B. Thetford Mines, Quebec Canada.
On leave granted, ACL appeals from an order entered in the Law Division on June 10, 2005, striking its answers and defenses, without prejudice, for failure to provide discovery as required by prior court orders, and requiring ACL to pay certain counsel fees and expenses. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.
On or about November 22, 2002, prior to Mark Buttitta's death, he and his wife, Susan Buttitta, filed a complaint in the Law Division against various defendants, including ACL.
Subsequently, the complaint was amended three times and a fourth amended complaint was filed on September 16, 2004. After her husband's death, Susan Buttitta continued the lawsuit individually and as executrix of her late husband's estate. The amended complaint asserts claims of negligence, wrongful death, and products liability due to the decedent's alleged exposure to asbestos while employed for co-defendant GM, in Englewood, New Jersey, from 1970 to 1973.
Mark Buttitta's father, Frank Buttitta, Sr., was employed by GM in Bloomfield, New Jersey, and Englewood, New Jersey, from about December 3, 1952 throughout the 1970s. Mark Buttitta's brother, Frank Buttitta, Jr., was employed by GM in Englewood, New Jersey, during portions of 1970 and 1971. Plaintiff alleges decedent was exposed to asbestos dust from his father and brother, their clothing, and from the co-workers he carpooled with to the GM facility.
On October 6, 2004, ACL filed its answer to plaintiff's fourth amended complaint. In its defenses, ACL raised Canadian law. In particular, ACL asserted that the claims in plaintiff's complaint were "subject to the laws and regulations of the Dominion of Canada and the Province of Quebec, and recognition of plaintiff's claims for relief would offend the Comity of Nations." Furthermore, ACL contended that plaintiff's claims were "subject to the laws and regulations of the Province of Quebec and the Dominion of Canada, and their claims for relief must be determined under the laws of those jurisdictions."
This appeal concerns ACL's responses to certain interrogatory questions, and ACL's contention that it was prohibited from providing certain information because it was bound by the Quebec Business Concerns Records Act (QBCRA) which, according to ACL, prohibits the removal of that information from Canada. ACL contends that if forced to violate the provisions of the QBCRA it would be subject to criminal penalties. ACL also argued that the information sought in the interrogatories in question was overly broad and vague. ACL contends that it "never sold any of its raw chrystotile asbestos fiber to any of plaintiff's alleged exposure sites."
Because the Law Division did not develop the record by analyzing the discovery issues presented through application of the factors set forth in Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987) (Aerospatiale) and Restatement (third) of Foreign Relations Law of the United States, 442 (1987) (Restatement), we are constrained to vacate the June 10, 2005 order and remand the matter for reconsideration consistent with this opinion. The following procedural history and analysis informs our decision.
On June 2, 2003, plaintiff served the first set of interrogatories to all defendants. Plaintiff requested general and specific information concerning the defendants' business, asbestos milling and marketing, and activities regarding asbestos products.
On or about July 30, 2003, ACL answered plaintiff's first set of interrogatories. ACL set forth a preliminary statement and general objections to plaintiff's requests. In particular, ACL objected to discovery and production of certain documents because the QBCRA, Chapter D-12 of the Revised Statutes of Quebec (1977), prohibited such disclosure. ACL also objected to the purported vagueness and overly broad nature of plaintiff's requests.
By letter dated August 27, 2003, plaintiff outlined alleged deficiencies in ACL's answers to the first set of interrogatories. Specifically, plaintiff objected to ACL's responses to questions numbered 5, 11(g), 21, 24, 46, and 53, contending that the answers provided were evasive, non-responsive, incomplete, or deficient.
Interrogatory questions numbered 5, 11(g), 21, 24, 46, and 53 read as follows:
5. State whether you have controlled, purchased, or in any way acquired any controlling interest in any corporation or business entity which has mined, manufactured, produced, processed, compounded, sold, supplied, distributed and/or otherwise placed asbestos or asbestos containing products in the stream of commerce. If so, state:
a. The name and address of said corporation or business entity;
b. The dates you controlled, purchased or acquired any interest; and
c. The nature of the business as it pertains to asbestos.
* * * *
11. If your answer to any of subparts of the preceding interrogatory regarding asbestos is in the affirmative, state:
a. The trade, brand name, and/or generic name of such asbestos milled or marketed in any form or quantity between 1950 and 1975;
b. The date(s) such asbestos was first placed on the market, including the date(s) such asbestos was first marketed;
1. On an experimental basis;
2. On a test basis;
3. For sale.
c. The date(s) such asbestos:
1. Ceased to be produced; or
2. Was recalled from the market, if ever.
d. A description of the chemical composition of such asbestos, including the type and/or grade of asbestos;
e. A description of the physical appearance and nature of such asbestos, including any color coding, distinctive marking and/or logo on the packaging or container;
f. A detailed description of the intended use of such asbestos;
g. Identify to whom such asbestos has, at any time, been sold. As to each such, state:
1. The names of each such company, governmental agency or entity, distributor, supplier or manufacturer;
2. The inclusive dates of each such sale, and the amount (quantity) and the trade brand name of such asbestos sold;
3. The manner of shipment (e.g. boat, rail, etc.)
4. Whether you have any records indicating such sale or shipment and, if so, the name, address and job classification of each person who currently has possession of such records.
5. Either (1) attach all documents evidencing the information sought in this Interrogatory and its subparts to your answers to these Interrogatories, or (2) attach disks containing such data, or (3) describe such documents with sufficient particularity that they may be made the subject of a request for production of documents.
* * * *
21. Has defendant ever been a member of or affiliated with any trade groups, professional associations or organizations? If so, identify each such group, association or organization and set forth the inclusive dates of defendant's membership in each.
* * * *
24. Has your company ever been a member of, affiliated with or provided funding for the industrial Hygiene Foundation? If so, indicate when your company was a member or affiliated with this organization and set forth the dates, if applicable, when you provided funding to this organization.
* * * *
46. As to any asbestos containing products or asbestos mined, converted, fabricated, produced, compounded, manufactured, processed, sold or distributed by defendant, state whether any was shipped, distributed or sold to, either directly or through a third party to: (a) General Motors, including all divisions, affiliates, predecessors and successors; (b) any General Motors facility in New Jersey, including all divisions, affiliates, predecessors, and successors; and (c) Multi-Chevrolet, Rahway, New Jersey.
* * * *
53. Prior to 1975, did any person file a Workers Compensation claim for asbestos-related injury against this defendant or against any Workers' Compensation insurance carrier which provided coverage for this defendant? If so, state the total number of such claims and, for the first 20 such claims state:
a. The date of such claim;
b. The name of the claimant;
c. The case number;
d. The court in which the claim was filed;
e. The identity of this defendant's custodian of documents evidencing such claims.
ACL answered those interrogatory questions, as well as question number 4, in the following manner:
Response No. 4: From 1925 to 1986, ACL's sole business activity was the mining and milling of raw chrysotile asbestos fiber, a naturally occurring mineral substance and not a product. ACL's raw chrysotile asbestos fiber was sold F.O.B Thetford Mines, Quebec, Canada. Further, ACL has never sold any of its raw chrysotile asbestos fiber to any of plaintiff's alleged exposure sites.
Response No. 5: Objection; vague, ambiguous, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objections, see defendant's response to Interrogatory No. 4 above, which is incorporated by reference herein.
* * * *
Response No. 11: Objection; overbroad, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objections, see defendant's response to Interrogatory No. 4 above, which is incorporated by reference herein. By way of further response, ACL states that raw chrysotile asbestos is a hydrous magnesium silicate (H4, Mg3, Si2, O2) and is generally white or off-white in color. ACL's fiber was packaged in plastic polyethylene or paper bags. Prior to the use of paper and/or plastic bags, jute bags were used. The bags bore the printed name of the company, and a statement of weight, fiber grade and the initials of the mine from which it was obtained.
ACL labeled packages containing its asbestos fiber with the words:
Contains Asbestos Fibre
Avoid Creating Dust
Breathing Asbestos Dust May Cause
Serious Bodily Harm
This label has been prescribed for use by the United States Department Of Labor, Occupational Safety and Health Administration pursuant to 29 C.F.R. 1910.1001. It was promulgated in 1972. Prior to that time and commencing in January 1970, ACL labeled bags of raw asbestos fibre with the notice:
Caution-This bag contains chrysotile asbestos fibre. Persons exposed to this material should use adequate protective devices as inhalation of this material over long periods may be harmful.
In 1980, the following wording was put on the bags:
Contains Asbestos Fibres
Avoid Creating Dust
Breathing Asbestos Dust May Cause Cancer
And Other Fatal Diseases
Smoking Greatly Increases The
Lung Cancer Risk
There are literally thousands of uses for raw chrysotile asbestos fiber and ACL's fiber was sold to sophisticated purchasers and/or users.
* * * *
Response No. 21: Objection; overbroad, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objections, ACL was, at one time, an associate member of the Quebec Asbestos Mining Association ("QAMA") and an associate, non-voting member of the Asbestos Textile Institute ("ATI"). The exact dates of membership are unknown.
* * * *
Response No. 24: See defendant's response to Interrogatory No. 21 above, which is incorporated by reference herein.
* * * *
Response No. 46: Objection; overbroad; unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Defendant objects to this interrogatory to the extent that it is not limited in time or scope to plaintiff's alleged exposure. Subject to and without waiving said objections, ACL states that it has never sold or supplied any of its raw chrysotile asbestos fiber, which is not a product, to any of the plaintiff's alleged exposure sites.
* * * *
Response No. 53: Objection; overbroad; unduly burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Since plaintiff is not alleged to have been an employee of answering defendant, its internal operating procedures regarding its own employees are immaterial, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Further, the Workers' Compensation system in effect in the Province of Quebec is so different from any system that would be applicable here, that any comparison between the two would be completely irrelevant, immaterial and not calculated to lead to discovery of admissible evidence. Additionally, ACL cannot divulge the names of any claimants without their consent as this would violate the "ARPPIPS."
ACL did not formally respond to plaintiff's August 27, 2003 letter. Plaintiff filed a motion to compel discovery on January 21, 2004. On February 18, 2004, ACL served supplemental answers to the first set of interrogatories. In response to number 11(g), ACL objected to it on overbreadth and irrelevance grounds, but stated it had no records of any sales to: General Motors Corporation, Edgewater, New Jersey; General Motors Corporation, Englewood, New Jersey; Multi-Chevrolet, Union, New Jersey; and General Motors Corporation, Bloomfield, New Jersey. ACL raised the same objections to number 46, but answered that it "never sold any of its raw chrysotile asbestos fiber to any General Motors facility in New Jersey, including all divisions, affiliates, predecessors and successors; or to Multi-Chevrolet in Rahway, New Jersey."
On February 25, 2004, the trial court entered an order compelling ACL to provide more specific responses to plaintiff's interrogatories no later than February 20, 2004.
On March 8, 2004, plaintiff sent ACL a letter advising of "continuing deficiencies" in its supplemental answers to plaintiff's first set of interrogatories, namely numbers 11(g) and 46. In regard to number 11(g), plaintiff contended that ACL was "continuing its pattern of evasion" in responding that it has no record of the requested sales; plaintiff explained the interrogatory requested the identity of parties to whom such products were in fact sold. Plaintiff raised similar objections to the answer provided to number 46, explaining that although ACL responded that it did not ship, distribute, or sell to certain GM locations, plaintiff was interested in ACL's distribution to any and all General Motors facilities.
ACL responded to plaintiff in a letter dated March 15, 2004, stating that any information requested in interrogatory numbers 11(g) and 46 that did not relate to the facilities involved in the instant litigation was irrelevant. ACL contended that it had provided information responsive to these interrogatories, and that further requests were "nothing more than a fishing expedition for information that is irrelevant to this litigation."
Counsel exchanged e-mails in regard to the interrogatory responses on March 22, 2004. Then, on March 23, 2004, plaintiff filed another motion to compel discovery; ACL filed opposition. In its reply, plaintiff contended that ACL had been improperly attempting to limit the interrogatory responses to the work sites of decedent, his brother, and his father, and requested that ACL be ordered to provide information on the supply of fiber material to GM or any other defendants.
On May 11, 2004, the trial court granted plaintiff's motion, ordering: (1) ACL to provide specific and fully responsive answers to plaintiff's first set of interrogatories, including numbers 11(g) and 46, by providing the requested information and documents by May 21, 2004; (2) all defendants to provide plaintiff and ACL with all locations at which raw asbestos fiber was received, delivered, distributed, used in manufacturing, or purchased, no later than May 14, 2004; (3) ACL and its counsel jointly and severally to pay plaintiff's reasonable expenses, including attorney fees, incurred in obtaining the order; (4) counsel for plaintiff to submit a certification within ten days of the order setting forth its legal fees and costs, and; (5) counsel for ACL to object, if necessary, to plaintiff's certification of costs within five days of its submission.
On May 20, 2004, plaintiff submitted a letter to the court requesting $1,622.00 in legal fees in connection with the motion to compel discovery. ACL objected to the application for an award of counsel fees and costs, and requested additional time to comply with the order to compel. On June 15, 2004, the trial court ordered ACL to reimburse plaintiff $1,622 for counsel fees and costs incurred in obtaining the order to compel answers within thirty days.
On July 1, 2004, ACL served its supplemental responses to plaintiff's first set of interrogatories. In essence, ACL incorporated GM's answer to question 13 of plaintiff's first set of interrogatories, in which GM stated that it had purchased chrysotile fiber for its drum and disc brake linings from ACL, among others. Additionally, as adopted by ACL, GM stated:
GM cannot identify each and every entity to which it supplied any asbestos-containing friction products during the extensive period requested by plaintiffs. GM does not keep records that would allow it to determine the amount of asbestos-containing friction products it sold in the region, or any other geographic or chronological categorization. For the lengthy and historic period this request covers, GM supplied replacement parts, which may have included some asbestos-containing friction products, to authorized dealerships and distributors in existence during the relevant period. . . . GM cannot identify dealerships unless they are currently in operation because it does not keep track or keep a database on closed dealerships. . . . In addition, GM's information about authorized dealerships and distributors does not provide data specific to sales of asbestos-containing friction products as defined in this request.
By letter to plaintiff's counsel dated July 14, 2004, counsel for ACL confirmed a telephone conference of that date explaining that the "supplemental answers are the best we can do without violating Quebec law and complying with New Jersey law."
In response, on or about July 21, 2004, plaintiff filed a motion pursuant to R. 4:23-5(a), seeking an order suppressing ACL's answer for failure to comply with discovery and requiring it to pay attorneys' fees. On August 11, 2004, ACL filed a cross-motion on short notice seeking an order quashing the objected-to interrogatories or, alternatively, entry of a protective order.
On August 27, 2004, the trial court conducted a hearing on these motions. Plaintiff argued that ACL had acted in bad faith and engaged in gamesmanship, wasting the court's time. ACL argued that the QBCRA prohibited the disclosure of any information pertaining to documents in Quebec, and maintained that it had attempted to answer and supplement those answers in good faith because it had to use documents already in the United States.
On September 20, 2004, the trial court denied plaintiff's motion, finding that the QBCRA was inapplicable and that notions of comity did not require the court to consider the QBCRA as a barrier, potential or otherwise, to ACL's compliance. The court stated that it would enter an order if, by September 24, 2004, the documents requested were not provided or explained, at which time the court would suppress ACL's answer. The court also imposed a $100 penalty for each day the counsel fees and costs contained in the June 15, 1004 order remained unpaid. Specifically, the motion judge explained that:
I don't believe that law has an efficacy in international law. It couldn't possibly have. If Canadian companies wish to transact business with the United States companies and make profits by it, then they're going to have to abide by the international laws that would compel every country to transact business, who does such transactions of business, to also be subject to the discovery rules in the jurisdiction where they're making those profits.
Quebec is not a separate entity. The vote didn't go their way. So, it must be Canadian law that we look to, not Quebec law.
* * * *
The Court is satisfied there is absolutely nothing preventing the defendant ACL from producing the documents that would specify what was the amount of the fibers that were sold to any location in the United States in the years that I have already specified had to be produced.
The trial court ordered ACL: (1) to respond fully to interrogatory numbers 11(g), 46, and 47, no later than September 24, 2004; (2) to pay reasonable expenses, including counsel fees incurred by plaintiff to obtain the order, in the amount of $500; (3) to pay to counsel for plaintiff the counsel fees previously awarded in the amount of $1,622.00, and; (4) to pay $100 per day for each continuing day ACL fails to comply with the court order on reimbursement of counsel fees. The trial court also ordered that if ACL failed to make timely payment of the ordered counsel fees, plaintiff could submit a certification to that effect and request that ACL's answers and defenses be suppressed.
ACL moved before this court, pursuant to R. 2:5-6(a), seeking leave to appeal from the trial court's interlocutory September 20, 2004 order. In an order issued on December 7, 2004, we denied that motion.
On February 24, 2005, plaintiff filed a motion seeking enforcement of the June 15, 2004, and September 20, 2004 orders. The trial court held a case management conference on March 3, 2005, addressing discovery issues and plaintiff's motion. On March 8, 2005, ACL filed two motions in support of applications for pro hac vice admission. Plaintiff opposed the applications on the basis ACL had failed to demonstrate "good cause." On April 1, 2005, the court held a case management conference and a hearing on the pending enforcement motion. The trial court ruled that ACL owed $21,000 in fines for the delay in paying plaintiff's counsel, and that until that amount was paid, ACL's defenses would be stricken. The trial court also ruled that until interrogatory numbers 11(g), 46, and 47 were properly answered, ACL's answer would remain stricken. The trial court stated the motions for pro hac vice admission were "not in the case at the moment," but could be raised again "if they are back in the case at some point."
In an order issued on April 22, 2005, the trial court memorialized its April 1, 2005 decision, which ordered ACL: (1) to fully respond to interrogatory numbers 11(g), 46, and 47; (2) to pay to counsel for plaintiff counsel fees previously awarded in the sum of $1,622 and $500; and (3) to pay counsel for plaintiff the amount of $100 per day previously awarded for each of the 189 days that ACL had failed to comply with the court order, totaling $21,022. The trial court ordered that ACL's answers and defenses would be stricken until the total of $21,022 was paid to counsel for plaintiff, no later than May 20, 2005. Lastly, the trial court denied the applications for pro hac vice admission, without prejudice, on April 26, 2006.
On April 20, 2005, ACL moved for reconsideration, seeking an order reinstating its pleadings and defenses. Plaintiff opposed ACL's motion for reconsideration by way of a letter dated May 4, 2005. The trial court held a hearing on the reconsideration motion on May 13, 2005. The court denied ACL's motion, and stated that no further applications would be entertained until ACL complied with the court's prior orders.
The motion judge found it "a little astounding, shall we say, that the defendant, ACL, is still relying on this Quebec Records Act, which has nothing to do with this case or with these proceedings." The judge found the QBCRA had "zero to do with any kind of discovery that was requested in this case. The express words of the Quebec Records Act excludes anything that's the subject of the - of an act of the Parliament of Canada." The motion judge further explained that she had "superficially investigated international treaties between the United States and Canada" and found there was nothing that would preclude providing that documentation to courts in the United States.
On June 10, 2005, the trial court entered an order memorializing its ruling that: (1) ACL's answers and defenses shall remain stricken without prejudice; (2) ACL shall pay counsel for plaintiff the attorneys' fees previously awarded in the amount of $1,622 and $500, and; (3) ACL shall pay the amount of $100 per day for the 189 days ACL failed to comply with the court's order, totaling $21,022. On June 29, 2005, plaintiff filed another motion seeking assessment of attorneys' fees and costs.
On July 8, 2005, ACL filed a motion seeking amendment of the June 10, 2005 order. Plaintiff filed a cross-motion, seeking entry of a judgment for payment of previously-ordered attorneys' fees and costs.
On July 25, 2005, we granted ACL's motion for leave to appeal from the June 10, 2005 order. After its application for a stay pending appeal was denied by the trial court, we issued an order on September 19, 2005, granting ACL's motion for a stay.
On appeal, ACL presents the following arguments for our consideration:
THE TRIAL COURT ERRONEOUSLY FAILED TO CONSIDER THE OBLIGATIONS IMPOSED ON ACL BY THE QUEBEC BUSINESS RECORDS CONCERNS ACT, WHICH PROHIBITS PRODUCTION OF RECORDS OR INFORMATION DERIVED FROM THOSE RECORDS OUTSIDE OF QUEBEC AND CONTINUES TO IMPOSE CONTEMPT SANCTIONS.
ACL COMPLIED WITH ITS DISCOVERY OBLIGATIONS WITHIN THE CONFINES OF THE QBCRA BY PROVIDING DISCOVERY ANSWERS RELEVANT TO THE SUBJECT LITIGATION.
THE TRIAL COURT FAILED TO TAKE A REASONABLE AND BALANCED APPROACH AND ABUSED ITS DISCRETION.
ACL contends the trial court's order of June 10, 2005 violates basic principles of international comity, since compliance with the trial court's order would force ACL to violate the QBCRA and subject it to criminal penalties. Specifically, ACL contends that the general principles of international comity have been clearly delineated by the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895), and adopted by the New Jersey Supreme Court in Fantony v. Fantony, 21 N.J. 525, 533 (1956). The application of such principles to this case, argues ACL, dictates that we vacate the trial court's June 10, 2005 order. In Hilton, supra, the United States Supreme Court stated, in pertinent part:
"Comity" in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows with in its territory to the legislative, executive, or judicial acts of another nation, having due regard both to the international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
[159 U.S. at 163-164, 16 S. Ct. at 143, 40 L. Ed. at 108.]
In Silverman v. Berkson, 141 N.J. 412 (1995), our Supreme Court addressed the extraterritorial subpoena power of a New Jersey agency, holding that a New Jersey agency may subpoena a nonresident who has engaged in purposeful conduct in New Jersey and that a New Jersey court may enforce such a subpoena. Id. at 414. Although this case presents different facts, both cases present similar questions with respect to the extraterritorial powers of our courts. The Court stated that:
In deciding whether to exercise enforcement jurisdiction, courts should "balance the interests it seeks to protect against the interest of any other sovereign that might exercise authority over the same conduct." Because each sovereign has an interest in the welfare of its citizens, we would add, in this context, that a court must consider (1) the extent and nature of the hardship that inconsistent enforcement actions would impose ...; (2) the extent to which the required conduct is to take place in the territory of another state; (3) the residence of the person subpoenaed; and (4) the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.
[Silverman, supra, 141 N.J. at 429 (quoting Republic of Phil. v. Westinghouse Elec. Corp., 43 F.3d 65, 76 (3rd, Cir. 1994).]
In Aerospatiale, supra, 482 U.S. at 524, 107 S. Ct. at 2546, 96 L. Ed. 2d at 472, the Court confronted the question of to what extent a federal district court must employ the procedures set forth in the Hague Convention when litigants seek answers to interrogatories, document production, and admissions from a foreign adversary over whom the district court has personal jurisdiction. Aerospatiale concerned two French corporations engaged in the business of designing, manufacturing, and marketing aircrafts. Id. at 525, 107 S. Ct. at 2546, 96 L. Ed. 2d at 472. One of their aircrafts crashed in Iowa, injuring the pilot and a passenger. Ibid. The individuals injured brought separate suits in federal district court in the District of Iowa, alleging multiple product liability claims. Ibid. The French corporations answered the complaints, without questioning the jurisdiction of the federal district court, and the cases were consolidated and referred to a magistrate. Ibid.
Initial discovery was conducted. However, when plaintiff sought a second request for the production of documents and answers to interrogatories, the French corporations filed a motion seeking a protective order. Ibid. In their motion, they alleged that because the corporations were French, and that the discovery sought could only be found in a foreign state, the Hague Convention dictated the procedures to be followed for pretrial discovery. Id. at 525-526, 107 S. Ct. at 2546, 96 L. Ed. 2d at 472-473. They further contended that under French penal law, the defendants could not respond to discovery requests that did not comply with the Hague Convention. Ibid. The magistrate denied the motion, ruling that permitting the Hague Convention to overrule the Federal Rules of Civil Procedure would frustrate the interests of the court in protecting United States citizens, particularly in products liability cases. Id. at 526-527, 107 S. Ct. at 2547, 96 L. Ed. 2d at 473.
On appeal, the Court concluded that the magistrate had properly refused to grant the broad protective order requested by the defendants, but held that
American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. . . . In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation. American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.
[Aerospatiale, supra, 482 U.S. at 546, 107 S. Ct. at 2557, 96 L. Ed. 2d at 485.]
The Court declined to articulate specific rules to guide trial courts, ibid., but in a footnote addressed the issue of what effect the French blocking statute had on the Court's decision to uphold the magistrate's decision. In stating that the blocking statute did not alter its conclusion, the Court recognized that:
[i]t is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute. Nor can the enactment of such a statute by a foreign nation require American courts to engraft a rule of first resort onto the Hague Convention, or otherwise to provide the nationals of such a country with a preferred status in our courts. It is clear that American Courts are not required to adhere blindly to the directives of such a statute. Indeed, the language of the statute, if taken literally, would appear to represent an extraordinary exercise of legislative jurisdiction by the Republic of France over a United States district judge, forbidding him or her to order any discovery from a party of French nationality, even simple requests for admissions or interrogatories that the party could respond to on the basis of personal knowledge. It would be particularly incongruous to recognize such a preference for corporations that are wholly owned by the enacting nation. Extraterritorial assertions of jurisdiction are not one-sided. While the District Court's discovery orders arguably have some impact in France, the French blocking statute asserts similar authority over acts to take place in this country. The lesson of comity is that neither the discovery order nor the blocking statute can have the same omnipresent effect that it would have in a world of only one sovereign. The blocking statute is thus relevant to the court's particularized comity analysis only to the extent that its terms and its enforcement identify the nature of the sovereign interest in the nondisclosure of specific kinds of material.
[Id. at 544, n. 29, 107 S. Ct. at 2556, 96 L. Ed. 2d at 484 (citations omitted; emphasis added).]
The Court directed that the district courts could find their guide to a comity analysis within the Restatement of Foreign Relations Law of the United States (Revised) 437(1)(c) (Tentative Draft No.7, 1986) (approved May 14, 1986), now codified in Restatement (Third) of Foreign Relations Law of the United States, 442 (1987) (Restatement). Id. at 544, 107 S. Ct. at 2556, 96 L. Ed. 2d at 484. The Restatement states that
(1)(a) A court or agency in the United States, when authorized by statute or rule of court, may order a person subject to its jurisdiction to produce documents, objects, or other information relevant to an action or investigation, even if the information or the person in possession of the information is outside the United States.
* * * *
(c) In deciding whether to issue an order directing production of information located abroad, and in framing such an order, a court or agency in the United States should take into account  the importance to the investigation or litigation of the documents or other information requested;  the degree of specificity of the request;  whether the information originated in the United States;  the availability of alternative means of securing the information; and  the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.
[Restatement, 442(1)(a), (c) (emphasis added).]
The Restatement also sets forth a reasonableness requirement in enforcement by a domestic court over a foreign entity to comply with the court's rules. See 431(2), 403(1).
Here, ACL contends the trial court failed to make a comity analysis using the factors articulated in the Restatement, and gave no consideration to the barrier the QBCRA imposed on ACL in producing the discovery.
In order to determine whether the trial court should have given deferential consideration to the QBCRA it is necessary to examine the factors articulated in Aerospatiale and the Restatement in light of the facts of this case, as disclosed by the record on appeal.
As for the first Aerospatiale factor concerning the importance of the information requested we find it significant that ACL attempted to answer plaintiff's interrogatories without running afoul of the QBCRA. By incorporating defendant GM's response as its own, ACL essentially admitted to supplying asbestos products to defendant GM. By admitting to selling asbestos to GM, arguably plaintiff acquired the information the requested discovery sought to obtain. However, plaintiff contends that the adopted answers do not supply the information regarding any other parties to whom ACL may have sold asbestos products. On remand, the trial court should consider the relevancy of this additional information in the context and balancing of the other factors.
As for the second Aerospatiale factor the degree of specificity of the discovery requests plaintiff's requests are quite broad. It could reasonably be concluded that plaintiff's discovery requests are really an attempt by plaintiff to identify more defendants. For example, Interrogatory 5, asks ACL if it has "acquired any controlling interest in any corporation or business entity which has mined, produced, processed, compounded, sold, supplied, distributed and/or otherwise placed asbestos or asbestos containing products in the stream of commerce." Other requests are similarly broad. The comments to the Restatement suggest that:
Before issuing an order for production of documents, objects, or information location abroad, the court ... should scrutinize a discovery request more closely than it would scrutinize comparable requests for information located in the United States.... Given the difficulty in obtaining compliance, and the resistance of foreign states to discovery demands originating in the United States, it is ordinarily reasonable to limit foreign discovery to information necessary to the action -- typically, evidence not otherwise readily obtainable-- and directly relevant and material.
[Restatement 442, comment 1.]
Here, the motion judge did not engage in such an analysis.
The third Aerospatiale factor concerning the origination of the information weighs in favor of ACL, since the information sought by plaintiff did not originate in the United States, but in Canada.
As for the availability of alternative means for securing the information the fourth Aerospatiale factor the record is unclear whether the information sought by plaintiff is available from other sources within the United States or whether plaintiff attempted to obtain such information from alternative sources. Whether GM could reasonably be that alternative source is an issue that should be explored and considered on remand.
Under the fifth Aerospatiale factor, the court must consider what important interest of the United States would be undermined should ACL comply with the mandates of the QBCRA. Since this case is a products liability action, clearly there is an important interest in protecting United States citizens from harmful products, including harmful foreign products. Such an interest in protecting citizens from harm, arguably trumps the QBCRA, particular in light of fact that it seems the enactment of the QBCRA, as well as many other blocking statutes, was done in attempt to prevent the long arm reach of the United States' anti-trust statutes. See Hunt v. Lac d'Amiante du Quebec, 4 S.C.R. 289, 328 (1993) (Supreme Court of Canada referencing the legislative history of the statute as a defense to U.S. antitrust statutes and recognizing how the blocking statues have ended up harming individuals not originally intended); Restatement 442, n.1. ("To a considerable extent, the hostility to United States discovery practices reflects dislike of aspects of substantive American law, notably United States antitrust law ..."). However, the issue of whether plaintiff had an available remedy in a workers' compensation action should also be considered in the calculus.
Because the record was not fully developed, our brief discussion of these Aerospatiale factors does not provide a definitive answer as to whether the QBCRA is entitled to deference by the trial court concerning the discovery issues in this case. However, it is clear that we must remand the matter to the Law Division for consideration and analysis in light of these factors. Even if a consideration and weighing of the Aerospatiale factors results in a conclusion that ACL must comply with the discovery demand, on remand the trial court must also consider whether less severe methods of compliance are available, such as proceeding in accordance with the requests for admission procedures pursuant to R. 4:22-1 to -2.
Plaintiff argues that the QBCRA is not entitled to any deferential consideration under the comity principles of international law because Quebec is not a foreign state. Plaintiff relies on American Industrial Contracting, Inc. v. Johns-Manville Corporation, 326 F. Supp. 879 (W.D. Pa. 1971), where the federal district court for the Western District of Pennsylvania directed two Quebec-based companies to answer certain interrogatories. There, the Quebec-based defendants had filed a motion for reconsideration, arguing that the QBCRA prevented them from complying with the court's order directing them to provide answers. Id. at 880. In denying defendants' motion, the district court ruled that "[t]he province of Quebec is not a State within the meaning of the doctrines of international law. These doctrines only apply to nations in the international sense such as the United States and Canada." Id. at 881. Plaintiff also cites Lyons v. Bell Asbestos Mines, Ltd., 119 F.R.D. 384 (D.S.C. 1988), for the proposition that the QBCRA, a legislative pronouncement of a province of Canada, "is not entitled to deference under the principles of international law." Lyons, 119 F.R.D at 388. Plaintiff also cites to Young Women's Christian Ass'n of National Capital Area, Inc. v. Allstate Ins. Co. of Canada, 1994 U.S. Dist. LEXIS 16826 (D.D.C. 1994), as support for the contention that foreign blocking statutes are not entitled to deferential consideration under the comity principles of international law.
Although we may consider these cited cases for guidance, they are not controlling authority. In Societe Internationale Pour Participations Industrielles Commerciales, S.A. v. Rogers (Rogers), 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958), the United States Supreme Court held that a district court could not dismiss a plaintiff's complaint because the plaintiff had failed to produce foreign documents on the ground that production would subject it to criminal prosecution in Switzerland. In reaching this conclusion, the Supreme Court stated:
The findings below, and what has been shown as to petitioner's extensive efforts at compliance, compel the conclusion on this record that petitioner's failure to satisfy fully the requirements of this production order was due to inability fostered neither by its own conduct nor by circumstances within its control. It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction, and this exercise is not weakened because the laws preventing compliance are those of a foreign sovereign.
[Id. at 211, 78 S. Ct. at 1095, 2 L. Ed. 2d at 1266-67.]
In Arthur Andersen & Co. v. Finesilver, 546 F.2d 338 (10th Cir. 1976), the Tenth Circuit Court of Appeals expanded on Rogers, stating that Rogers "does say that a discovery order mandating violation of foreign law is invalid. It only indicates that the foreign law question goes to the imposition of a sanction for noncompliance with local law." Id. at 342. The Tenth Circuit ultimately ruled that international comity does not prevent a domestic court from ordering action that violates foreign law. In holding so, the court relied on the Restatement. Ibid. See Restatement 442(1)(a).
Plaintiff further argues that assuming arguendo the QBCRA was entitled to the benefits of the comity analysis, our courts still are not required blindly to adhere to the mandates of foreign law. In Lyons, supra, the district court noted that comity does "not compel blind obedience to the legislative enactments of foreign jurisdictions." 119 F.R.D. at 388. The court recognized that
"in the realm of international discovery .... the exercise of judicial power should be tempered by a healthy respect for the principles of comity." In re Anschuetz & Co., GmbH., 754 F.2d 602, 614 (5th Cir. 1985). Nonetheless, "[a] state having jurisdiction to prescribe or enforce a rule of law is not precluded from exercising its jurisdiction solely because such exercise requires a person engage in conduct subjecting him to liability under the law of another state having jurisdiction with respect to that conduct." United States v. First National City Bank, 396 F.2d 897, 901 (2d Cir. 1968) (emphasis original), quoting Restatement (Second) of Foreign Relations Law of the United States 39(1)(1965).
Clearly, "the dilemma is the accommodation of the principles of the law of the forum with the concepts of due process and international comity." Arthur Anderson & Co. v. Finesilver, 546 F.2d 338, 341 (10th Cir. 1976). This dilemma has been particularly apparent in the context of "blocking" statutes such as the QBCRA, which engender diametrical conflict between the purpose of the Federal Rules of Civil Procedure to foster full and open discovery and the intent of the blocking statute to preclude disclosure of otherwise discoverable information and documentary evidence.
[Lyons, supra, 119 F.R.D. at 388.]
We agree with plaintiff that a trial court does not have to blindly accord deference to a foreign blocking statute. See Aerospatiale, supra, 482 U.S. at 544, n. 29, 107 S. Ct. at 2556, 96 L. Ed. 2d at 484 ("It is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even thought the act of production may violate that statute"). This, however, does not mean a trial court has the right to ignore or dismiss the fact that there is such a statute and what effects it may pose on a foreign defendant.
The QBCRA provides that
no person shall, pursuant to or under any requirement issued by any legislative, judicial, or administrative authority outside Quebec, remove or caused to be removed, or send or cause to be sent, from any place in Quebec to a place outside Quebec, any document or resume or digest of any document relating to any concern.
[Que.Rev.Stat., ch.278, 2 (1964).]
A document is defined as "any account, balance sheet, statement of receipts and expenditure, profit and loss statement, statement of assets and liabilities, inventory, report and any other writing or material forming part of the records or archives of a business concern." Id. at 1.
Upon violation of 2 of the act, the QBRCA further provides that
[e]very person who has furnished, or has received from the judge an order to furnish, an undertaking or security and who infringes the provisions of section 2 shall be guilty of contempt of court in addition to any obligation provided by the undertaking or security furnished or ordered by the judge.
[Que.Rev.Stat., ch.61, 5 (1992).]
ACL alleges that 5 provides that anyone guilty of violating the QBCRA shall be guilty of contempt of court and liable to one-year's imprisonment. We note, however, that although ACL might be subject to contempt of court, the one-year imprisonment term is no longer in the statute. Id. 5. Therefore, the consequences ACL faces by complying with discovery are considerably less than what ACL contends in its brief.
Furthermore, Section 4 of the QBCRA provides that whenever the Attorney General or a person having any interest has
reason to believe that a requirement has been or is likely to be made for the removal or sending out of Quebec of a document relating to a concern [such person] may apply to a judge of Court of Quebec, in the judicial district where the concern in question is located, for an order requiring any person, whether or not designated in the requirement, to furnish an undertaking or security to ensure that such person will not remove or send out of Quebec the document mentioned in the said requirement.
[Que.Rev.Stat., ch.40, 4 (1999).]
Additionally, anyone given notice of such petition, and who removes such documents shall be guilty of contempt of court. Que.Rev.Stat., ch.61, 5. Section 4 of the QBCRA empowers the Attorney General to apply to the courts of Quebec for an order precluding removal of documents. This section indicates that the QBCRA is not self-enforcing, but requires that the Attorney General or a person having an interest in the action make such petition to acquire an order prohibiting the removal of the documents from the province. See Lyons, supra, 119 F.R.D. at 387. Here, it appears from the record that ACL has not petitioned either the Canadian Attorney General or the Canadian courts for such an order. The failure to seek such petition raises concerns whether ACL raises the QBCRA as a defense to complying with discovery in good faith.
However, in support of its position, ACL points to numerous Canadian cases that have given the QBCRA a very broad and liberal interpretation. In Gulf Oil Corporation v. Gulf Canada Ltd., et al., 2 R.C.S. 39 (1980), the Supreme Court of Canada refused to compel answers to letters rogatory issued by U.S. District Courts based on Canadian public policy. The court found that when there is an attempt to enforce a foreign law in a Canadian court in the face of a conflicting statute, which in this case was the Uranium Information Securities Regulations, public policy dictates Canadian law prevail. Id. at 61-62.
It is necessary, however, to compare this case to the 1993 Supreme Court of Canada decision in Hunt v. Lac d'Amiante du Quebec Ltee, 4 S.C.R. 289 (1993). In Hunt, the Supreme Court of Canada held the QBCRA was constitutionally inapplicable to the other provinces within Canada. Id. at 331. The conclusion reached by the court rested on the grounds that if such practice was permissible under the Canadian Constitution, it would effectively immunize business concerns located in Quebec from ever having to produce discovery for litigation in other provinces. Id. at 330.
Both plaintiff in her brief and the trial court during the August 27, 2004 motion hearing relied on Hunt to support the conclusion that New Jersey need not enforce the QBCRA.
The motion judge, in ordering ACL to produce the documents, stated:
It is patently clear from the 1993 Canadian Supreme Court case that the law of Quebec concerning documents and how it affects discovery in any business commercial litigation is simply not going to be upheld.
It wasn't upheld for any litigation in Canada and the Supreme Court intimated that anyone pressing the issue on international law, especially where there has been not one single word concerning invoices, vouchers, customs, duty forms, all of which are -- already had to be within the United States of America's domain, therefore, couldn't possibly be subject to the Quebec law that you are citing.
I don't believe that law has any efficacy in international law. It couldn't possibly have. If Canadian companies wish to transact business with the United States companies and make profits by it, then they're going to have to abide by the international laws that would compel every country to transact business, who does such business, to also be subject to the discovery rules in the jurisdiction where they're making those profits.
Quebec is not a separate entity. The vote didn't go their way. So, it must be Canadian law that we look to, not Quebec law.
And since defense Counsel was, in fact, the attorney of record on the last such claim before Canadian Supreme Court and knows that the only thing that would be possible to try and prevent the -- the discovery that has been requested for a year and a half here by plaintiff's Counsel, would be for defendant's Canadian Counsel to refer this matter to the Attorney General of -- of Quebec or Canada and ask the Court to prevent his discovery. That's the only possible way this could have happened. They knew that since 1993.
* * * *
The Court is satisfied there is absolutely nothing preventing the defendant ACL from producing the documents. . . .
ACL attempts to distinguish Hunt on the grounds that the Supreme Court of Canada did not disturb its previous ruling in Gulf Oil with regards to the discovery of documents in Quebec by jurisdictions outside of Canada, and that therefore the holding of Gulf Oil is the applicable law in this case.
ACL also relies on Renault v. Bell Asbestos Mines, Ltd., No. 09-000564-761 and Savard v. Asbestos Corporation Limited, No. 500-02-048902-90, a Quebec appellate court case and a provincial court case, respectively, as additional support for a broad interpretation of the QBCRA. In both of these cases, the courts prohibited removal of information from Quebec gleaned from documents located in Quebec. In Savard, specifically, the court ordered the defendant to furnish an undertaking that they would not transport documents out of Quebec.
Furthermore, ACL argues that in Asbestos Corporation Limited v. Eagle Picher Industries and Attorney General of the Province of Quebec, No. 500-09-01246-825, the Court of Appeals for the Province of Quebec clarified the proscriptions contained in the QBCRA. There, a New Jersey plaintiff filed suit against the defendant alleging an asbestos-related disease due to exposure to asbestos. In the course of the litigation, the plaintiff sought certain documents from the defendant. Ibid. The defendant filed a motion contesting production of such documents based on 2 of the QBCRA. The New Jersey trial court granted the defendant's motion in part, restricting the production of the number of documents, specified that the documents need only be available for inspection and not copying, and ordered that such inspection take place at the defendant's head office in Montreal. Ibid. Thereafter, the defendant sought relief from the Canadian courts. The Superior Court in Quebec had ordered the defendant to comply with the American order, on appeal; however, the Quebec Court of Appeals found that the Superior Court went too far, and that the Superior Court judge should have refused to order the defendant to exhibit the documents in question to the plaintiff or its attorneys. The Court of Appeals found that even the inspection of the documents at the defendant's head office in Montreal was tantamount to the documents being removed from Quebec.
Plaintiff further argues that the Canadian cases cited by ACL contravene the public policy of the State of New Jersey and are not entitled to consideration. We agree that, although we may consider these Canadian decisions for guidance, they are not controlling or binding.
There is no consensus among American courts concerning the validity, scope, and reach of the QBCRA, and there is no controlling New Jersey case law.
In Juzwin v. Asbestos Corporation Limited, et al., No. 87-3876 (D.N.J. 1989), the court sustained the defendant's objections to discovery requests based on the QBCRA. In doing so, the judge found that the discovery requests were "an attempt by the plaintiff to draw adverse consequences from ACL's compliance with the Quebec blocking statute of which plaintiff was well aware before the requests were even served. Under these circumstances ... it [was] appropriate for ACL to comply with the Quebec blocking statute."
In State of Maryland v. Keene Corp., No. 1108600 (Cir. Ct. Anne Arundel, MD 1986), the state court balanced the considerations of discovery against the QBCRA to protect the defendant, ACL, from the consequences of the blocking statute. The court ordered that the State pursue its discovery within the United States and that the defendant was not required to produce the documents from Quebec until it was clear that the information sought was not available in the United States.
In Jenness v. Turner & Newall, Ltd., et al., No.C83-61-L, (D.N.H. 1984), the district court found that the defendants' fear that responding to discovery requests would violate the QBCRA was well founded and that defendants had made a good faith effort to comply with discovery. Therefore, the court ordered defendants to answer the interrogatories from information located outside of Quebec, and ruled that the defendants need not answer if the information exists only in Quebec.
Other courts, however, have held that the QBCRA is not entitled to deference by the American courts. In Young Women's Christian Ass'n, supra, the District Court for the District of Columbia held that the QBCRA was not entitled to deference. 1994 U.S. Dist. LEXIS at 7. The court noted that, "[f]irst of all, the 'blocking statutes' are local laws and not national laws. Consequently, they are not entitled to any deferential consideration under the comity principles of international law." Ibid.
In Lyons v. Bell Asbestos Mines, supra, the defendants failed to respond to discovery requests relying on QBCRA. The District Court for the District of South Carolina stated:
As noted by another court confronted with discovery objections predicated on the QBCRA, "the exact reason for the Quebec legislation is not clear." American Industrial Contracting, Inc. v. John-Manville Corp., 326 F. Supp. 879, 880 (W.D.Pa. 1971). "At first blush, it would seems its purpose is to require that a Quebec corporation keep its business records intact in the province." Id. Based on this construction, "it is not at all clear that compliance with plaintiffs' demand would contravene the Quebec statute." Petruska v. John-Manville, 83 F.R.D. 32, 26 (E.D.Pa. 1979). "There is no indication that the statute would be offended if defendants were to make copies of the requested documents and submit those, with a sufficient showing of authenticity, to plaintiff's counsel ...." Id. The statute's proscription could likewise be avoided if defendant was to make the requested documents available in Quebec. (citation omitted).
Additionally, there has been no showing that the QBCRA would be violated if defendant answered plaintiffs' interrogatories under oath without removing the documents themselves. "The interrogatories .... do not require the removal of any documents from the Province of Quebec ...." American Industrial, supra, at 880. Accord Wilder v. Amatex Corp., No. 82 CVS 953 (N.C. Super. Ct. Dec. 21, 1983). In Wilder, the court "reviewed the provisions of Chapter 278, Section 2 of the Laws of Quebec .... and .... determined that the answer of the Interrogatories propounded by Plaintiff does not require the removal of any documents, photocopies, or other records in violation of the aforesaid Law of Quebec ...." Wilder, slip op. at 1.
Moreover, even assuming that plaintiffs' discovery requests here fall within the ambit of section 2 of the QBCRA, defendant has not alleged the pendency of an order precluding removal of the requested documents under section 4. "The statute is not self-enforcing but requires a petition by the Attorney-General ['procureur general'] to a district judge for an order requiring the documents not be sent out of the province." American Industrial, supra, at 880. As in Petruska, "there is no suggestion that the 'procureur general' has filed 'une requete adressee a un juge de district en vertu de l'article 4,' with respect to the documents sought by plaintiff in this case." Petruska, supra, at 36. Consequently, "defendants' professed anxiety about the jeopardy which compliance would entail . . . . seems, at least on the present record, somewhat far-fetched." Id.
Thus, defendant has failed to make an adequate showing that the QBCRA is in fact applicable to plaintiffs' discovery requests in the instant case. Even assuming that the statute would preclude the transfer of original documents out of Quebec, this court is not convinced that the statute would be contravened by the production of photocopies outside Quebec or by the inspection of documents within Quebec. Moreover, aside from defendant's failure to respond to plaintiffs' requests for production, defendant has also declined to answer plaintiffs' interrogatories, which would not entail the removal of documents or copies thereof from Quebec. Finally, defendant has not alleged that a restraining order under section 4 of the QBCRA is pending. Under these circumstances, defendant has failed to meet its evidentiary burden in establishing that the provisions of the QBCRA would apply to the discovery sought by plaintiffs in their cases.
[119 F.R.D. at 387.]
In Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628 (1992), the District Court for the District of South Carolina, relying on Lyons, supra, found the QBCRA was not entitled to deferential consideration under the principles of international law. Id. at 645.
In American Industrial, supra, the District Court for the Western District of Pennsylvania found that QBCRA did not protect the defendant, a Canadian corporation, from answering interrogatories. 326 F. Supp. at 880-881. In finding such, the court determined that United States public policy demands the defendant answer interrogatories despite the defendant's reliance on the QBCRA. Ibid. Furthermore, the court deemed "the province of Quebec [is] not a state within the meanings of the doctrines of international law. [And that t]hese doctrines [of comity] only apply to nations in the international sense such as the United States and Canada." Ibid.
In Petruska, supra, the District Court for the Eastern District of Pennsylvania held that an American court has the power to direct a Canadian Corporation properly subject to the court's jurisdiction to comply with discovery. 83 F.R.D. at 36. "Nevertheless, [the court determined] it would hardly seem prudent for a court to exercise its power in a fashion disruptive of the public policy of another country (or political subdivision thereof) unless it was apparent that no less intrusive measure would serve the compelling litigation needs of the forum." Ibid. Therefore, the court decided that while the defendant was obligated to produce the documents, it may prefer to do so in Quebec and not the United States. Ibid.
Although none of these cases are binding, they do offer guidance. The courts and judges involved all found either that the QBCRA did or did not diminish a defendant's responsibilities to provide discovery and documents under the laws of the United States. Unlike the record before us, however, these decisions were reached after careful consideration of the QBCRA and the facts of those cases. Although it may be appropriate to apply the QBCRA in this case, a more careful consideration and balancing of the parties' interests, including the Aerospatiale comity considerations, should have been conducted. As the United States Supreme Court has said, and what has been summarized by the American Law Institute:
"[W]hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the bass of the best information available.... [Blocking] statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States." See Restatement 437, Reporter's Note 5, pp. 41, 42. "On the other hand, the degree of friction created by discovery requests ... and the differing perceptions of the acceptability of American-style discovery under national and international law, suggest some efforts to moderate the application abroad of U.S. procedural techniques, consistent with the overall principle of reasonableness in the exercise of jurisdiction." Id., at 42.
[Aerospatiale, 482 U.S. at 544, n.29, 107 S. Ct. at 2556, 96 L. Ed. 2d at 484.]
Here, the motion judge did not consider the factors set forth in Aerospatiale, nor consider whether there were any alternative means in which the information could have been obtained from ACL, or whether that information was indeed relevant in light of the admission that it had supplied raw chrystotile asbestos fiber to GM. Moreover, document inspection could have been ordered to take place in Quebec in order to lessen the offense to the QBCRA or, alternatively, the court could have ordered plaintiff to first seek this discovery within the United States before mandating ACL turn over documents located in Quebec. We are thus constrained to vacate the June 10, 2005 order and remand the matter for reconsideration consistent with this opinion.
Reversed and remanded.
This appeal was calendared for argument on March 1, 2006, and was adjourned by the court at the request of counsel to a telephonic argument.
The return date of the motion was February 6, 2004.
August 16, 2006